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Since being elected, one of President Trump’s highest priorities has been to enforce immigration laws and discourage illegal immigration. These efforts have mostly taken the form of executive orders and directions to various government agencies such as Immigration and Customs Enforcement (ICE) on the way they ought to carry out their duties, as well as proposed budget increases to border services and ICE. Recently, even the House has evidenced an enforcement mentality, passing two bills aimed squarely at illegal immigrants: Kate’s Law and No Sanctuary for Criminals Act. They targeted individual offenders and jurisdictions that refuse to comply with ICE respectively. In short, enforcement is the name of the game.

Obviously illegal immigrants are not the only ones breaking the law when it comes to their employment in the United States. Employers that use them (whether it be for cheaper labor, or any other purpose) are also likely breaking the law, especially if they know that they are employing someone without an authorization to live and work in the United States. The relevant legislation is the Immigration and Nationality Act, and in particular Section 274A that deals with "The Unlawful Employment of Aliens." If every single business in the U.S. complied with this law and refused to employ illegal immigrants, there likely would not be any illegal immigration into the country, as very few people willingly move to a place where they would have no income.

Under this law employers in the U.S. are required to have an I-9 form on file for every person they employ. On the I-9 form, employers are required to indicate whether the employee is a U.S. citizen, permanent resident, or on some sort of non-immigrant visa that provides them authorization to work in the U.S., such as an H-1B or TN visa. The legislation ensures that employers see and record the information on the documents the employees provide to prove their identity and employment authorization. This might be a U.S. passport, a green card, a foreign passport along with a Form I-94, for example, or any other approved document. There is a list on the I-9 form itself on what constitutes acceptable documentation and the employee can choose whichever document from the list he or she wants.

While there are certainly parts of the form that require the help of the employee in question, responsibility for properly completing the form lies with the employer and the employer must take reasonable care to insure that the information is accurate. An I-9 form is supposed to be filled out within 3 days of a person starting work and then kept on file. The Department of Homeland Security, Department of Labor, or the Immigrant and Employee Rights Section of the Department of Justice all have the right to verify the documents on file at the company's[place of business with only three days notice. For businesses that operate on weekends, weekend days are counted in those three days. The turnaround is very quick, as employers are supposed to have these documents ready and available. Businesses are not supposed to be backdating I-9 forms. Nevertheless, if a company does not have everything ready when contacted, at the discretion of the inspector extensions can be granted, although they are not guaranteed.

What happens if a business fails to comply with this law? Generally, a company cannot be punished if at the time of hire, it genuinely did not know that a person was not authorized to work. This could happen when the employee presents a fake social security number, or some other document. However, failure to do due diligence is not an excuse. Neither is stupidity – enforcement officers have pretty much seen it all. The moment a company becomes aware it is employing an illegal immigrant, it is supposed to fire them, giving them reasonable notice (generally two weeks). There are fines associated with knowingly employing illegal immigrants. For first time offenders, this can be up to $4,313 per illegal employee. For second-time offenders fines can be up to $10,781. For consistent repeat offenders, fines can be up to $21,563 per illegal employee. Further, with particularly serious violations i.e., knowingly employing more than 10 illegal aliens, or helping to smuggle them in or money laundering proceeds from aiding and abetting illegal immigrants, employers can face criminal charges and up to 10 years of jail time per charge and can also have their assets seized. As an example, a restaurant owner in San Diego was once out over $1 million dollars due to enforcement.

Workplace audits under the Obama administration peaked in 2013, when 3127 were conducted. They then fell to almost a third of that number, 1279, in 2016. So far, the Trump administration has focused far more publicly on arresting and detaining illegal immigrants at their homes. However, this is no reason for businesses to be complacent. The laws are on the books to help Trump make life very difficult for employers that continue to employ illegal immigrants. ICE can come knocking on your door at any time. The best way to avoid that risk is to have your company’s I-9 forms in order and to do due diligence on each new hire.

Andy J. Semotiuk is a U.S. and Canadian immigration lawyer, published author and former UN Correspondent with offices in New Yorkand Toronto. Sign up for his newsletter at MyWorkVisa.com